|
When David Hannah walked into a small
office on the second floor of the Moberly Correctional
Facility in Moberly, Missouri, last fall, carrying his belly
like a hundred-pound sack of sand, the staff knew him well
enough not to worry about what he might break or steal or
soil in their private offices, which were normally not
accessible to inmates, so I was able to close the door behind
him and we sat together and talked about what was happening
to his body. He was a pale, fifty-seven-year-old white male,
serving a sentence of life plus three years for rape, and his
gray hair was matted to his head. His face was as worn and
gaunt as a much older man’s.
|
|
Hannah was angry. "Look at it," he said, glaring at his
gut. "Do you want to see it?"
|
|
I didn’t want to see it, but
I nodded anyway. I had come precisely to see it, to
witness Hannah’s disfigurement, the fruit of a long
series of medical miscalculations. It had begun in the 1980s
with two kinds of hepatitis, B and C, a condition that prison
doctors had largely ignored for a decade, then treated with a
series of botched, questionable procedures that caused
David’s cells to cease performing osmosis properly, so
that over time his natural body fluids began to collect,
trapped inside his gut with no way to evacuate, his
midsection swelling to accommodate those fluids, expanding to
such a size and weight that the mere act of walking around
had given David, by December 2000, a pair of hernias, neither
of which the prison doctors had bothered to treat. David
stood now to show me the belly and the hernias, the condition
his body had arrived at through an utter lack of attention.
He pulled his flannel shirt to the side of his waist and
lifted his gray T-shirt, and, in spite of myself, I winced.
His belly was enormous, taut and pasty, seemingly glued to
his gaunt frame. At the front of it, a hot-pink hernia, about
the size of a grapefruit, seemed barely attached where the
belly button should have been, giving David’s
midsection the overall contour of a giant breast and nipple.
Bracing myself, I asked him where the other hernia had
emerged. He studied me, obviously not fond of baring his
physique. After a moment, he shrugged and unbuttoned his
pants.
|
|
To describe David’s scrotum as swollen and red
would be a failure of language. It was about the size of a
rugby ball, so raw and irritated, shiny and crimson, that it
almost seemed to be covered with blood. David hung his head.
"They give me aspirin," he said.
|
|
Later, when I heard that David had died of
indeterminate causes and that his body had been cremated, I
realized that I had probably been the last person outside of
the prison staff to see David alive, to see what his body had
become from all those years of mistreatment, and I wondered:
Can such a secret be kept?
|
|
It occurs to me now that prisons are designed for
keeping secrets, for holding inside not just men but also
their lives and the details of those lives. In prison, social
isolation is a matter of policy, and inmates are neither
expected nor encouraged to have more than a modicum of
contact with the outside world. This is not necessarily, or
at least not ostensibly, vindictive. In many cases, isolation
is the prison’s approach to rehabilitation. As Alexis
de Tocqueville observed nearly two centuries ago, "Thrown
into solitude [the convict] reflects. Placed alone, in view
of his crime, he learns to hate it; and if his soul be not
yet surfeited with crime, and thus have lost all taste for
anything better, it is in solitude, where remorse will come
to assail him."
|
|
Still, the social isolation of prisoners creates a host
of difficulties, not least of which is that of monitoring
their treatment, of ensuring that they are assailed only by
their own remorse and not by anything else—by, say,
other prisoners, or by those who keep the watch. Opacity,
after all, runs both ways, and if the prison walls keep
convicts in, they work just as effectively to keep observers
out.
|
|
This problem is only made worse inside the prison
infirmary. By its very nature, medicine is a private matter,
and a prisoner’s medical records are protected by the
same confidentiality laws that protect free citizens. This
means that a prisoner’s medical chart is both locked
inside a physical fortress and shielded by a battery of
privacy restrictions, all of which leaves the field of prison
medicine cloistered and nearly impossible to survey.
Compounding this is the fact that prison medicine, and,
indeed, the principles of medicine itself, are fundamentally
at odds with all other facets of prison life. Even the term
"prison medicine" borders on oxymoron: Whereas prison is
designed to alienate and punish, medicine exists to nurture
and soothe. So were is the boundary between care and
punishment? At what point do they meet?
|
|
IF THE SECRECY OF PRISON
MEDICINE SEEMS ABSTRACT, WAIT
UNTIL THE HEPATITIS EPIDEMIC
COMES FLOODING OUT
|
|
|
Until the 1970s, which is to say for the first two
centuries of American life, these were not questions that
anyone felt compelled to ask, let alone answer. As a matter
of law, prison medicine had always been considered a
privilege, not a right, and the final authority on treatment
was not a doctor or even a court but the local warden.
Prisoners whose medical needs were not being met, whose
broken noses and diabetes were left untreated, who were
stabbed and not sewn, feverish and not medicated, prisoners
who had cancer but no treatment, who had prescriptions that
wardens refused to fill, whose mental health teetered at the
edge of self-destruction-----those prisoners had no recourse,
nor reason to expect it. In the early 1970s, a survey of
jails by the American Medical Association found that fewer
than 30 percent had medical facilities and only about one in
five had a formal arrangement with any medical provider.
|
|
Things began to change in 1971, when an uprising at the
Attica penitentiary in New York forced the subject of prison
conditions into the national conversation. Amid a flurry of
laws enacted in response to Attica, state and federal
legislators began crafting measures to guarantee basic health
care to prisoners. Although the laws have changed over the
past thirty years, little else has. If anything, prison
health care is in further decline now than ever. Most
departments of correction have chosen not to invest in
medical infrastructure but rather to farm out the business to
subcontractors, and these days a single, private corporation
controls the health care of all prisoners in ten states and
manages a portion of inmate health care in another seventeen,
having underbid competitors everywhere it exists.
Correctional Medical Services is not merely the
nation’s largest provider of prison medicine; it is
also the nation’s cheapest provider, a perfect
convergence of big business and low budgets. But unlike the
traditional HMO, whose risk of a malpractice suit is real,
and is felt, and is reflected to at least some degree in the
quality of medical care, companies such as CMS have little or
no reason to protect themselves. Most juries are reluctant to
decide in favor of a convict, and those juries that do favor
the convict are often reluctant to award money. Cost-benefit
analysis takes on special, human overtones behind bars.
|
|
Perhaps even more significantly, private companies such
as CMS feel no responsibility, and have no legal obligation,
to account to the public for what goes on inside their
facilities. So, while CMS receives about $550 million of
taxpayer money each year, the company chooses not to provide
any accounting of how that money is spent or even how much of
it is spent-----and how much unspent, to be pocketed as
profit. And although lawsuits over the years have revealed
discredited health-care professionals working in CMS
facilities, the company refuses to reveal the names of its
doctors and nurses for verification or to provide any account
of how many have been disciplined or had their licenses
revoked in other states. With CMS responsible for so many
patients nationwide, it is fair to say that the practice of
medicine in prison has reached an unprecedented level of
inscrutability-----indeed, secrecy-----and if this fact seems
abstract or unlikely to affect regular folks in the general
population, well, just wait until the hepatitis epidemic
comes flooding out of the gates.
|
|
(back to top)
|
|
For those of you who have never
been personally acquainted with the hepatitis virus, allow me
to describe it briefly. In the spring of 1995, I downed the
wrong glass of frozen margarita somewhere in the Chihuahua
desert and unleashed the disease on my insides. Unaware, I
took a bus back to Juarez a few days later, walked across the
border, drove home to Albuquerque, and, when the travel itch
returned a few weeks later, set out for Glacier National
Park, where I intended to spend thirty days in the
backcountry, mountaineering. By the time I arrived in
Montana, however, the virus had begun to set in, and I found
myself overwhelmed by fatigue. Deciding to get some rest
before starting out, I found an empty cabin near the boundary
of the park, crawled down to the basement, settled into a
bed, and, with one last glance at my backpack by the door,
passed out. When I woke up several days later, I was lying on
my back in a medical facility 120 miles away with an IV in my
arm and a sign on the door that said, "Warning Take Enteric
Precautions Before Entering." Asking around, I learned that I
had been delivered to the medical center by a friend who
worked in the park. My liver-enzyme levels, upon check-in,
had been gauged at more than a hundred times the normal
level. The first time I looked in the mirror, I saw that my
jaundiced skin was roughly the same color and texture as a
dried tangerine. I spent several days lying in place,
flitting in and out of consciousness, playing host to an
array of curious physician’s assistants, nurses, and
certified nursing assistants, some of whom ran tests on my
urine and blood while the rest mostly stood around marveling
at how odd I looked. That was the beginning. For the next six
months, I was forced to live at my parents’ house,
where my daily priorities became eating healthy food,
sleeping at least half of each day, and wishing that my
perpetual headache would relent. This was the face of
hepatitis A, the least virulent strain of the virus.
|
|
The difference between the type of hepatitis I
contracted and, say, hepatitis C, which is the most severe
strain, is mostly a matter of intensity. My hepatitis
eventually went away; hepatitis C, in most cases, does not.
It keeps on attacking your liver for the rest of your natural
life. That means people with acute hepatitis C can
essentially forget about all the wonderful things that livers
do, such as fighting infections, filtering toxins, and
storing energy. To make matters worse, people with hepatitis
C are contagious for the rest of their lives. Even twenty
years after their initial infection, even if the virus is in
remission and they feel pretty good, they still constitute a
walking weapon and had better be careful where they bleed. It
is worth noting, then, that somewhere between 20 and 40
percent of American prisoners are, at this very moment,
infected with hepatitis C, and therefore quite contagious. It
is also worth noting that most of them will eventually be
released back into the general population, where the
infection rate is, for now, only about 2 percent. The
Association of State and Territorial Health Officials noted
in a 2000 report that "an estimated 1.4 million HCV-infected
persons pass through the correctional system each year." And
although the virus is most pervasive in prison because of the
high incidence of injected drugs there, it can be transmitted
just as easily on the outside through sex, blood,
transfusion, or even a nasty fistfight.
|
|
With a scourge like this roiling on the inside,
threatening to boil over to the outside, you might expect
prisons to adopt some kind of screening policy for inmates
and to institute a treatment offensive for the afflicted.
Unfortunately, no such national program exists. Although the
cost of a hepatitis test is only a couple hundred dollars,
very few facilities volunteer to provide them, and there has
been no federal legislation to require the measure.
"It’s a missed opportunity," says Dr. Cindy Weinbaum of
the Centers for Disease Control and Prevention. "The number
of prisoners with hepatitis C is incredibly high. It’s
unbelievable."
|
|
The fact that most prison doctors have not seized this
opportunity doesn’t reflect any inherent challenge to
their doing so. On the contrary, a couple of states have
developed simple and effective hepatitis programs that test
all prisoners upon intake, making the disease relatively easy
to track and monitor. One of those states is Texas, and
there, not surprisingly, prison health care is managed not by
a private company like CMS but by two universities, the
University of Texas and Texas Tech University. Dr. David
Smith, who is the chancellor of Texas Tech and who led the
battle to make hepatitis screening mandatory in Texas,
assured me that the hepatitis program he created is not very
special at all, or anyway that it shouldn’t be.
"It’s just the smart thing to do," he said. "We have
almost 30 percent of our prison population in Texas infected
with hepatitis. That’s not so different from the
numbers you see in the Dark Ages with the plague."
|
|
(back to top)
|
|
When I visited a handful of CMS
facilities last fall, I found a very different attitude.
Under CMS care, 214,000 inmates are expected to petition for
any hepatitis tests they want, and even if those petitions
are granted, and the tests given, and the results positive,
the chances of getting any kind of treatment are only
slightly better than of getting a presidential pardon. This
became most obvious to me when I heard the story of Larry
Frazee.
|
|
I met Larry at the Western Missouri Correctional Center
in Cameron, about four hours west of St. Louis. He was a
gaunt little man with a circular face surrounded by
brownish-gray hair, and his thin mustache seemed to weigh on
his lips when he spoke. He walked with a silent shuffle, and
from the black bruises under his eyes you could see that he
hadn’t slept well in months, if not years. When I began
reading through his medical record, it was easy to see why.
Larry had first been diagnosed with hepatitis in the early
1990s, when a prison plasma center rejected him as a donor.
The diagnosis had been confirmed by a prison infirmary in
June 1994, but even so, between then and the end of 1997, he
had managed to wrangle only a half dozen doctor’s
visits. It wasn’t until January 2000, a full five and a
half years after his diagnosis, that CMS doctors began
formally monitoring his condition. Even then, treatment was
not forthcoming. As Larry discovered, CMS doctors required
him to meet a long checklist of conditions, known as a
"protocol pathway," before he could receive any treatment for
his disease. Some of those items required off-site
consultations. One of the things he needed, if he wanted
treatment, was a liver biopsy. But when Larry went to the
prison infirmary to ask for one, he learned that he had to
have a psychological evaluation first, then enroll in a
drug-abuse awareness class and sign a slew of forms releasing
CMS from liability for anything that might happen during the
biopsy. So Larry did those things one by one, and he signed
the papers, and he went to see the biopsy specialist, who
promptly sent him back to his cell because he didn’t
know his virus genotype. Larry couldn’t find anything
in the protocol pathway that required him to know his
genotype, but to be a good sport he put in a request at the
infirmary for a genotype test. A few weeks later, he got the
test, but the laboratory somehow screwed up his results, so
he had to file for a second test and wait for a second
appointment and a second set of results before, in February
of last year, he finally returned to see the biopsy
specialist, who sent him away again, this time saying that
Larry shouldn’t bother getting treatment anyway,
because it can be somewhat dangerous. Larry argued that it
was his decision to make, and that he wanted the treatment,
or at least the biopsy that he was entitled to, and maybe
afterward, when he had the biopsy results and could take an
informed look at them, he would be willing to discuss the
risks of treatment, but the doctor just shook his head. The
decision was final, he sad. No biopsy. He sent Larry back to
his cell, where Larry has been ever since, without a biopsy,
without any treatment, feeling sick and tired and a bit like
he failed himself.
|
|
But what Larry didn’t realize, and what
he’s only now beginning to grasp, is that he never had
much of a chance in the first place. As a matter of formal
company policy, CMS discourages treatment for hepatitis, and
the protocol pathway is just a way of making it harder for
prisoners to demand it. Although a CMS spokesman insisted
that CMS doctors are private contractors and that "it is the
individual physician’s responsibility to make sure care
is given to patients," an internal memo from CMS regional
medical director Gary Campbell to his fellow directors in
February 1999 reveals just how much authority the doctors
really have at CMS. "I am not encouraging anyone to undergo
therapy," the medical director wrote. "However, if you have
someone that is insistent, then this pathway is to be
followed." Campbell added, "Unless I have given you specific
approval to do Hep C testing, do not do so unless the patient
has obvious moderate to severe liver disease or has exposure
as described by the exposure policy of the DOC. Remember, all
Hep C testing has to be approved by me."
|
|
And so, for the 214,000 prisoners whose health is
supervised by CMS, the hepatitis epidemic continues to grow,
untested and untreated, virtually unencumbered by the forces
of modern medicine, while people like Larry Frazee remain
right where the company wants them: stalled along the
protocol pathway. Whether or not this is legal remains to be
decided. In January of this year, the University of Michigan
law program filed suit against CMS for failure to address the
hepatitis problem in that state. If their case is successful,
similar lawsuits may follow in other states. Until then,
however, the policy stands: No testing, no treatment.
|
|
"CMS is an HMO with a captive audience," says David
Santacroce, the professor who is spearheading the Michigan
lawsuit. "The fewer patients they treat, the more money they
make."
|
|
"This is deliberate indifference," adds Michael
Steinberg, legal director of the Michigan ACLU. "There is a
standard for testing and treatment of Hep C that the Centers
for Disease Control came out with, and CMS simply is not
heeding it. It’s not just hepatitis, either. You talk
about the tip of the iceberg! There is a systemic problem of
not providing good health care to prisoners. Hepatitis is the
tip of it, but there’s a long list of issues below the
surface that we haven’t even begun to address."
|
|
(back to top)
|
|
Some of those issues have been
addressed in other courtrooms, however, in other states, by
other groups, and taken as a whole, the litany of malpractice
crimes committed by CMS doctors begins to read like a horror
novel. Take the inmate in Alabama who died of dehydration and
starvation in a CMS infirmary after receiving care that one
medical director described as "non-existent" and "a gross
departure from medical community standards." Or the inmate in
the same state who died when CMS staffers injected him with
the wrong medicine. Or the CMS doctor in New Mexico who
testified that he was required by the company to prevent
off-site referrals. Or the district judge in Idaho who found
that an inmate’s care in the state prison "more closely
resemble[s] physical torture than incarceration.? Or the
inmate in Nevada who died because a CMS doctor canceled her
prescription for insulin. Or the federal judge in Michigan
who described CMS follow-up care as "bureaucratic purgatory."
Or a U.S. Justice Department inquiry in Virginia, which found
that CMS medical records "failed to meet any known
professional standard." Or the district court monitor in
Georgia who found that CMS ran a "medical gulag" in the state
prisons, giving one prisoner ibuprofen for his lung cancer
and making another wait ten months to see a doctor for a
broken arm.
|
|
Yet, perhaps because juries so rarely award money to
convicts, there is essentially no incentive for lawyers to
bring these crimes together into a comprehensive,
class-action lawsuit. Without the lure of a large settlement,
most trial attorneys are unwilling to fork out millions of
dollars in research and lost wages to fund such a massive
endeavor. As a result, the central figure in the movement
against CMS is not a major national law firm or even a
renegade lawyer, but an aging, confrontational activist named
Karen Russo.
|
|
I met with Karen, who runs a prisoner-advocacy group
called The Wrongful Death Institute, one evening last winter
at her home in the suburbs of Kansas City, and she invited me
inside to sit at the small wooden table in her dining room,
where we ate meat loaf and potatoes while her three dogs
scurried around and her teenage kids and their friends
traipsed up and down the stairs. Karen was undaunted by the
chaos around her. When she had finished eating, she smoothed
her dark brown hair behind her ears, sat back in her chair,
and, as if she were in an office or behind a podium, she
cleared her throat, blinked her heavily painted eyes, and
launched into a tirade against CMS, her voice ringing through
the house fervently, sometimes furiously.
|
|
"WE HAVE NUNS WHO GO IN AND
BRING DOCUMENTS OUT.
IT’S A WAR FOR INFORMATION,
AND CMS KNOWS IT"
|
|
"They don't want anyone to know what's going on in
these facilities," she said. "Getting medical records and
company documents is like going up against Fort Knox. We have
to resort to all sorts of methods. We have a network
of prisoners across the country who have ways of
getting paperwork out to us, a couple of pages at a time. We
have nuns who go in and bring documents out with them. We
have nurses, doctors, whistleblowers. It's a war for
information, and CMS knows it. They're just waiting to take me out.
They hate me. Every Monday at noon I do a radio show on a
local station, and it's like a fireside chat. The CMS
headquarters is just over in St. Louis, so they have people
listening. Everybody wants to know, 'Who's she going to get today?'
And it could be anyone. I could go after a nurse, I could
go after a doctor, I could go after the corrections staff.
And I've gone after all of them. I'm putting together a file on
every one of them. I call out their names on the air. 'Nurse
so and so , I want you to know that I'm onto you.' And the
prisoners are listening too. This thing is growing like
wildfire. A couple of years ago I was getting maybe two or
three letters a week; now it's anywhere from twenty to thirty
letters a day, from all over the country. Of course, some of
those are from CMS decoys. That's why they're doing
now-----they get offenders to write me letters that say, 'I'm
not sick, but I heard about what you're doing and I was just
wondering how you got started,' and so on. You know, just
dripping with it. They want to know what I've got. Bit I'm
not naive: I can see right through that; I can smell
it. They're scared, and they should be. We've got them. I
know what they're doing.
|
|
Karen's invective seemed over the top, but she was the
genuine article: a nearly obsessive crusader who had long ago
discarded any semblance of a normal life in favor of
late-night phone calls with sick inmates and interminable
afternoons poring over their medical records. The dust on her
antique piano had become so thick and sticky that it made my
eyes itch after only a few bars, and the ceiling in her
bathroom was crumbling to the floor. Yet Karen's memory was
immaculate; she had converted herself into a database of
detail, packed with accounts of prisoners met, their medical
histories, life stores, and extraneous personal minutiae. To
reinforce this glut of information, the back rooms of her
house were stuffed with thousands of papers, most of which
she could locate and produce within a few frenzied moments.
When pressed, she could also furnish names and numbers for a
whole range of sources, including guards and activists and
prisoners' family members (though she was more reluctant to
reveal others, such as the nuns and nurses she claims to
consult). In her utter submersion into the topic, Karen had
even developed a personal bond with one of the prisoners, a
man named Raymond Young, who was locked up nearby on drug
charges and whose persistent back problems and hernias kept
him in a wheelchair, but who gave off an almost eerie radiance
on the day I met him, with a great, black, bald head that
shone like an eclipsed sun and a grin full of golden teeth
inscribed with the numbers 3, 3, and 1/3. ("Thirty-three and
a third," he said in a gravelly whisper. "I'm a traveler. A
lone traveler.")
|
|
On the night I visited Karen, however, she took me to
meet a different friend, Leland Hunley, who had only recently
been released from the prison where Raymond is housed. When I
saw Leland's apartment, it was hard for me to imagine that he
was any more comfortable than he had been on the inside. His
building, an indistinct brick high-rise, was in the kind of
neighborhood that most middle-class people choose not to know
about. There were crack dealers selling openly and loudly on
the corner and drunks fighting in the street. The Plexiglas
front doors were smeared with random grub and old graffiti,
and the spun-polymer carpeting of the lobby seemed almost
melted across the floor. Up the clattering elevator a few
floors, down the narrow, echoing hallway, Leland's door
opened into a single shabby room where he sat in a wheelchair
watching a fuzzy television set that was on top of a little
table above a small collection of right-footed shoes.
Leland's left leg was missing.
|
|
"Come on in," he mumbled to us, pointing toward a couple of
chairs and wheeling himself around beside them. I sat down,
and we made small talk for a minute, then Leland cut to the story.
"Basically, what happened was, I was living on the
bay," he said. "That's the common area. It wasn't meant to
be a living quarters, but the rooms were all full, so they had
about thirty or forty cots in the bay, and I lived on
one of them. I was there for about a year. The whole time, they
never turned out the lights. But anyway, I was getting up
for breakfast one morning and I reached over and put my sock
on, and I felt a sting. So I pulled the sock back off and
a spider run out of it. Well, I stomped it. I knew it was a
brown recluse, pretty good size, so I scooped it up on a
piece of paper to bring to the infirmary."
|
|
Leland shook his head at the memory and ran a bony hand
over his short white hair. "But see, you can't just walk
into the infirmary. You've got to fill out a whole deal
called a Medical Service Request, and then they'll call you
whenever they get to you. By the time I got up there, it was
a couple hours later. The bite was swelled up to the size of
a quarter. I showed it to the nurse, and she put a salve on
it and sent me back. I mean, you could just look at it and
see that it was going to get infected. It was swollen,
throbbing, hurting like crazy. So a couple days later, I put
in to go back, and she soaked my foot in a solution. It got
to where she was doing that every three or four days. I would
put up an MSR and she'd soak it and wrap it up again. I could
tell it wasn't getting better, but I wasn't allowed to look
at it or anything. I could get a conduct violation if I took
the bandage off. Every time she unwrapped it, though, it
looked worse. It was a big black welt on top of my foot, with
a red hole in the middle. After a while, you could see my
bone through the hole. It kept opening up more. At one point
they had a doctor to lance it and drain out the pus It looked
like it might get better after that, but it didn't. It just
swelled up more. Eventually, my whole foot got black. It was
just a big black scab. That's when they started giving me
antibiotics, but it was already too late. I couldn't even
walk. Finally, the nurse took off the bandage one time and
just run out of the room. She was really upset. I don't know
what she told the doctor, but it wasn't a matter of a day
before they was taking me to the hospital. The doctor said,
"I'm gonna have to take it off." There was nothing I could
say at that point. He told me, "If you refuse, it'll kill
you." So I said, "Okay, take it off."
|
|
At fifty-eight, Leland couldn't have weighed more than
120 pounds, with knobby shoulders and elbows and a think wisp
of a neck. He rubbed his knees while he spoke, hunched over
in his wheelchair, weak and almost emaciated. Towardthe end
of the interview, Karen, who had been struggling to remain
silent, broke in to ask if he was okay. "You look like you're
losing weight," she said.
|
|
He shrugged. "Well," he said. "You know, I can't get to
the store by myself."
|
|
To someone on the outside, what happened to Leland's leg
might sound, at the most fundamental, instinctive level, like
a blatant case of malpractice. The notion of losing a leg to
a spider bite has no place in the modern sensibility, and the
suggestion that a person wait several weeks to receive
antibiotics for an infection is almost unthinkable (though
Leland's medical records confirm it). But like so many other
things in prison, the term "malpractice" is inscrutable. On
the outside, if a doctor does not conform to certain
standards of care, then he is guilty of negligence, plain and
simple, and finding a trial attorney to sue him is no
challenge. By contrast, in prison, mere negligence is not
necessarily enough for a lawsuit. Most prison malpractice
cases are filed under the Eighth Amendment, which guarantees
protection from cruel and unusual punishment. Unfortunately,
in order to convict a prison doctor under these terms, the
inmate must prove not only that the doctor provided
substandard care but also that he did so intentionally. This
rather elusive criterion is called "deliberate indifference,"
and under its protective banner a prison doctor is free to be
as negligent and irresponsible and incompetent, as he wants,
just as long as he is not intentionally causing patients to
suffer. Needless to say, this makes the practice of prison
medicine significantly harder to regulate, and the care of
patients harder to ensure. What could be more difficult to
prove---or more secret---than a man's unstated intentions?
|
|
|
LIKE SO MANY THINGS IN PRISON,
"MALPRACTICE" IS INSCRUTABLE.
NEGLIGENCE IS NOT NECESSARILY
ENOUGH FOR A LAWSUIT
|
|
|
(back to top)
|
|
While I was visiting Karen and
Leland in Kansas City, I placed a call to CMS headquarters in
St. Louis, hoping to interview someone there. I did not have
high expectations. I had already called several times from my
home in New Mexico (another CMS state) trying to
arrange interviews with hospital administrators and doctors
and nurses, but I had mostly been ignored. On those
occasions when my calls were returned, the CMS spokesperson had, in
an exasperated tone, made it clear that virtually every member
of his medical staff was far too busy to spend time with
reporters, and that furthermore this would remain the case
indefinitely, no matter how flexible my schedule was, no
matter when I offered to visit. The timing, he explained, was
simply awful, and it was not likely to get any better, ever.
|
|
Still, I held out some hope. Calling from within the
state, I figured, would seem more real and immediate to them;
and besides I was no longer planning to ask for interviews
with medical staff, or even company higher-ups, but to
settle for a sit-down with the spokesperson, which seemed
like a modest request, to say the least. I had even begun
looking forward to that interview, wondering how the
spokesperson might respond to the accusations I was hearing.
I could imagine that some of his points might be reasonable.
Certainly, prison medicine must difficult to administer,
and I assumed that the spokesperson would be eager to point
out just how difficult, and to illuminate the challenges of
working with convicts, of sorting through faked illnesses and
phony requests for medicine, ornery personalities and violent
outbursts.
|
|
But when Ken Fields, the spokesperson, called me back,
and I mentioned my desire to visit, he didn't sound nearly as
eager as I had hoped. "What do you want to talk about?" he
asked. "How were your interviews with inmates?"
|
|
I explained that most of them were angry at CMS
which was why I wanted to get his point of view. "I think
we're going to have to handle this on the phone," he said. I
suggested that it would be preferable to meet in person,
since I had met the inmates in person and didn't want them to
have an advantage, but he replied, "We've had bad experiences
with the media." I assured him that I knew this, yet I felt
that, as a member of the company's communications team, he
needed to communicate the company's message, but he insisted,
"I can't do it this week. I'm too busy." I offered to return
the following week, but he repeated that he preferred to
speak on the phone. So I repeated my preference to meet in
person, and he repeated that he was too busy. Then I repeated
my offer to return, and he repeated his preference to speak
on the phone. So it went, until finally, perhaps just to stop
the routine, he barked, "Well, I don't want you to come back
here. Why don't you just stop by tomorrow?" I agreed and we
hung up, but a couple of hours later, I found a message on my
voice mail from Fields, saying that he had decided not to
meet with me in person.
|
|
"It's a situation where we have been misquoted at times
in the past," he said, "and we're gonna respond to your
questions in writing. So I wanted to give you notice of that.
Thanks, bye."
|
|
But even in response to written questions, Fields was
hardly forthcoming: of the fourteen questions posed, he
offered only eight complete answers. For example, he was
willing to provide rudimentary statistics about the company,
such as the total number of patients under CMS care, but
would not describe any company protocols or reveal how much
money the company actually spends on patients, except to
insist that, of the more than half a billion dollars that CMS
receives in taxpayer money each year, a "very, very
significant portion to patient care." Although he was
quick to claim that all CMS doctors and nurses are licensed
in the states where they work, he dodged the question of how
many have been suspended or had their licenses revoked in the
past or in other states, insisting that the company is "not
obligated" to reveal those statistics. Nor would he answer
the question of whether or not the company has any plans to
begin screening for hepatitis, claiming that CMS leaves those
decisions to state legislatures and individual doctors, a
claim contradicted not only by the company's detail-heavy and
restrictive hepatitis pathway but also by the internal
communications of its regional medical director.
|
|
(back to top)
|
|
Since CMS officials were declining the
chance to meet with me, or to set up interviews, or even to
talk on the phone anymore, I decided to contact some of their
employees directly. This turned out to be easier than I
expected. Nurses tend to know one another, and after speaking
with a few nurses who didn't work for CMS, I was able to
reach a few nurses who had once worked for CMS and, finally,
nurses who still do. At the very least, I hoped they would
take the time to reassure me that the gritty standard of
"deliberate indifference" was not being met; that nurses and
doctors were not intentionally ignoring their patients. But
what I heard from CMS nurses was, in many ways, more
upsetting than what I had heard from inmates. One
conversation in particular stands out.
|
|
I had reached Christy through a series of referrals by
other nurses and their friends. At first, she was anything
but eager to speak with me. Her relationship with CMS was
still good, and she didn't want that to change. Although she
was no longer working in the jail in the northern United
States where she had been a CMS supervisory nurse for half a
decade (she had left to manage a hospital facility), she was
considering a return to the company and didn't want to
jeopardize her ability to do that. The money was good at CMS,
she explained, and besides, she didn't need them as enemies.
But after thinking about it and talking with her friends,
Christy decided to speak with me anyway, mostly because, as
she put it, she needed to tell somebody what she had seen and
done, especially what she'd done.
|
|
|
WHAT I HEARD FROM CMS NURSES
WAS, IN MANY WAYS, MORE
UPSETTING THAN WHAT I HAD
HEARD FROM INMATES
|
|
|
I was immediately drawn to Christy's story, even before
I had heard the details. As a supervisory nurse, she had been
the highest-ranking member of the medical staff on duty, so
she had been privy to many of the political and economic
machinations behind company policy. I was also interested to
hear about jailhouse medicine in general. People in prison,
after all, have been convicted of a crime and have forfeited
some of their rights (the right to vote, the right to own
handguns, etc.), but most people in jail are still awaiting
trial, and they haven't necessarily been convicted of
anything. Not only have those awaiting trial not forfeited
their rights; they are still officially innocent. Our legal
system takes great pains to insist on this, so I was curious
to know whether or not it made any difference to CMS.
|
|
The short answer, according to Christy, was no. "The way
we treated inmates was a horror," she said. "Whenever a new
inmate came in, they would have to see me, and I would assess
their medical condition. If it looked like they were going to
require any kind of serious treatment, I would go to the
lieutenant and explain what I felt the cost of the treatment
would be. I would say, 'We have this person here, and the
treatment is going to be horrendously expensive. We need to
get them out of here.' If they were a real serious criminal,
like a murderer, the liability was high, so they would keep
them under arrest and we would incur the cost of treatment.
But if the lieutenant thought the person was not a serious
risk to the community, he would proceed to get hold of judges
and other people to try to release the inmate, or make
arrangements to get the bail lowered. The lieutenants would
often call judges late at night and on holidays to tell them
the situation, then we would release the inmate, and take
them to the hospital, so CMS wouldn't incur the cost of
treatment. The lieutenants went along with it because they
didn't want to incur the cost of a deputy to stay with the
inmate in the hospital. So we would let them know, and they
would make a call and release the inmate, then they would
take them to the hospital. After the inmate got their medical
treatment, we would immediately re-arrest them.
|
|
"We did this frequently also with pregnant inmates. If
they went into labor, we would release them or given them a
signature bond, then re-arrest them and the child was put into
the custody of child services. I did that for years. You just
ignore what you're doing. The whole atmosphere of the jail
was, these criminals, these convicts, these scumbags, they
get what they deserve."
|
|
"Appointments were made for weeks or months down the
road, knowing that the inmate would not be there anymore. Or
we would make appointments for days that we knew the inmate
was going to be in court. They don't keep the trial dates in
the medical file, but you just call the booking desk up front
and ask them when the trial date is. Then you make their next
appointment for that date. We were told to tell them, there
was a canned phrase, 'Don't worry, you have an appointment.
We just can't tell you when it is because of security
reasons.' So you would be consoling someone, knowing full
well that they weren't going to get to see anybody. You just
put them right back at the bottom of the list again." *
|
|
"It was absolutely appalling, to the point that I can't
even tell you. You knew that as long as you worked there, you
did not challenge any of it. But your disgust builds as the
horrible cases build. Even though a good majority of these
people ended up being guilty. I just felt from a moral
standpoint that it was wrong. They always play up, 'Well,
look what they did to this other person,' so a lot of people
say, 'Okay, justice is served.' But the way I feel is, we've
all taken an oath and we have a license, and just because one
person has died, that doesn't mean that a second person dying
or being denied care…one doesn't justify the other. As
far as I'm concerned, if you're sick and you get into one of
these places, you might as well be signing your death
certificate. Even if you don't have a death sentence."
|
|
(back to top)
|
|
The more I spoke with nurses like
Christy, and looked at inmate medical files, and studied
infectious-disease statistics, the clearer it became that, no
matter where you looked or to whom you spoke, this was a
medical system run amok, one that no only ignored sick
patients but was actually skirting the limits of the law and,
in the process, helping to unleash an epidemic on society. As
one nurse put it bluntly, "We have no accountability. If I
deny care, that's it. You have no recourse." Yet the clearer
this reality became, the more baffling it seemed. Wasn't
anyone keeping track? Where had them media been?
|
|
In the course of nearly a decade, only two newspapers
had undertaken major investigations of CMS, and both were
located in Missouri, which has become a kind of ground zero
in the debate over prison medicine, largely because CMS is
headquartered there. Even more discouraging, the reporters
who wrote those stories had, in the aftermath of their work,
become just as tortured and frustrated as everyone else who
confronts the company. Not long ago, one of the agreed to
meet with me in the basement of his office, but within the
first two minutes of our conversation he insisted that I keep
his name out of my story. In the weeks after his articles
appeared in the Columbia Daily Tribune, he said, he had been
under attack by CMS lawyers and publicists, who deluged his
editors with denunciations, and he didn't want to be
perceived as settling the score. He sat nervously with me,
fidgeting, smiling, and trying to be as helpful as possible
without getting further involved.
|
|
The other reporter I spoke with was less reserved, but
only because he had less to lose. He had already lost it all.
In 1998, Andrew Skolnick had been an editor at the Journal of
the American Medical Association, a recent recipient of the
Harry Chapin Media Award, and an inaugural fellow of the
Rosalynn Carter Fellowship in the Mental Health Journalism,
which is a $10,000 grant. Using these lofty connections, he
had managed to get himself and two journalists from the St.
Louis Post-Dispatch into CMS facilities, where they spoke
with several inmates and doctors before publishing articles
in both JAMA and the Post-Dispatch, revealing a national
pattern of abuse and neglect by CMS. As the organizing force
behind both projects, Andrew had helped expose several CMS
doctors with checkered histories and had revealed more than a
dozen cases of egregious mistreatment, some of which resulted
in death. One story revealed a memo from the medical director
of the New Mexico corrections department explaining that
several prison doctors had quit because CMS administrative
officials were "changing physicians' orders and adding orders
without seeing the patient or consulting the physicians
directly." Another story exposed a CMS doctor in Alabama who
had been convicted of having sex with a sixteen-year-old
"mentally defective" patient in Tennessee. Another described
the chief of mental-health services for CMS in Alabama, whose
license had been revoked in both Michigan and Oklahoma after
he was found guilty of sleeping with patients, harassing
female staff members, and defrauding insurance companies. The
newspaper series had won awards from both Amnesty
International and the American Medical Writers Association in
the late 1990s, but even still, looking back, Andrew said
that he wasn't always certain it had been a good idea to
publish it. After the articles appeared, he told me, CMS had
sent a letter to JAMA, accusing him of hiding his involvement
with the Post-Dispatch, which they called "fraud," and
threatening to sue the journal. Within a week, JAMA had fired
Andrew and, although CMS later paid him to settle a
defamation lawsuit,** his professional life never quite
recovered Even today, the editors of JAMA refuse to comment
on "the conditions surrounding his termination" or to defend
his award-winning expose, which has never been refuted or
retracted.
|
|
"I had an exploding career," Andrew told me, "and it
crashed. We may have won some awards, but the horrible fact
is we lost. CMS won. After the articles appeared, they went
to the state legislature in Missouri and protected
themselves. They got a law passed expunging the records of
physicians who are accused of malpractice in correctional
facilities. So now, anytime the medical board doesn't take
action on an allegation they disappear it. This means no
pattern can emerge against a doctor. That is our legacy.
That's our achievement. We actually made it worse."
|
|
But Andrew's investigation had a resonance far beyond
that. It was his work that started CMS down the path of
information lockdown, building barricades to public scrutiny,
hiding numbers and statistics and the names of employees,
refusing even to sit for a formal interview, and stifling the
efforts of journalists to cover the field at all. Andrew's
series had put pressure on CMS, but that pressure had only
deepened the company's aversion to publicity. CMS officials
were happy to continue operating with public funds, but they
were no longer willing to provide any serious accounting of
them.
|
|
(back to top)
|
|
Like almost any wound, the
weakness of an institution festers without proper attention,
and as CMS has retreated into its shell, its facilities have
only grown worse. Outside of anecdotal evidence, however, it
is difficult to assess exactly how much worse----it is nearly
impossible, for example, to know how many doctors and nurses
it employs, or how adequate its facilities are, or even what
pathways and protocols it adheres to. Few lawsuits have
managed to expose details of the company's inner mechanisms,
and aside from the Michigan hepatitis suit there is no major
legal action pending against the company at the moment, only
scattered individual lawsuits----the great majority of them,
it is safe to say, doomed. In Massachusetts a small network
of attorneys has been threatening to file a comprehensive
class-action suit, but nothing has gained much traction so
far. And although the U.S. Justice Department has reportedly
kept an open file on CMS since the mid-1990s, collecting
evidence and reviewing cases, no formal charges have been
leveled against the company, and sources say it is not a high
priority in the post-9/11 climate. Even Karen Russo has her
doubts that CMS will change. "It's not going to happen," she
says. "They don't want to be rehabilitated. They probably
can't be rehabilitated. So the only solution is to get rid of
them, and they're going to fight that in every state, at
every step. They're going to use all their money and power,
and they have a lot."
|
|
But if the battle over prison health care is beginning
to seem lost, littered with the bodies of the wounded, the
sick and sickened alike, with inmates and nurses and
journalists by the wayside, if the whole field seems deathly
unwell and bordering on hopeless, it may, in the end, have
more to do with the way we look at prisons in general than
with anything CMS has done. This is not to obscure or to
apologize for the company's failures and crimes. It is simply
to suggest that the secrecy afforded to prisons would be easy
enough to strip away. When we, as a culture, choose to see
our prisoners as a part of our society (which they are, of
course, and an ever growing part), when we remove the wall of
secrecy that surrounds the prison itself when we are willing
to face and bear witness to the punishments we disburse,
there will be no more need to wonder what is being done on
the inside, in our names.
|
|
(back to
top)
|